Citation Nr: 21064184 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-07 102 DATE: October 19, 2021 ORDER Service connection for multiple myeloma, including due to herbicide agent exposure is denied. FINDING OF FACT 1. The Veteran's active duty service included U.S. Naval service in the Vietnam Era. However, there is no evidence that verifies he served offshore of the Republic of Vietnam or in the Republic of Vietnam, such that there is no presumed exposure to herbicide agents during service. 2. The Veteran's multiple myeloma is not related to service, to include any claimed in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for multiple myeloma, including due to claimed herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1967 to November 1970. This appeal to the Board of Veterans' Appeals (Board) is from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A September 2018 Board decision denied service connection for multiple myeloma, claimed as the result of herbicide agent exposure. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims. In a May 2019 Order, the Court granted a May 2019 Joint Motion for Partial Remand, vacating the Board's decision as to the claim for service connection for multiple myeloma, and remanded the matter to the Board for actions consistent with the Joint Motion. In January 2020, the Board remanded the case to the AOJ for additional development and consideration. The file is again before the Board for further appellate review. Service connection for multiple myeloma, including due to herbicide agent exposure is denied. The Veteran contends he developed multiple myeloma due to exposure to Agent Orange serving aboard a naval ship, the USS Constellation, with service in the waters off the coast of Vietnam. See June 2015 notice of disagreement (NOD). Private and VA treatment records show he has been diagnosed and treated for multiple myeloma since January 2007. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a) and 3.309 (e). Under VA regulation, service in the Republic of Vietnam is defined as "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307 (a)(6)(iii). Moreover, the Federal Circuit has held that for the purposes of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term "Service in the Republic of Vietnam" includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc). Therefore, a veteran is considered to have "served in the Republic of Vietnam," regardless of whether the veteran had duty or visitation on the ground or in the inland waters of Vietnam." Id, at 1380-81. Thereafter, on June 25, 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Act). See Pub. L. No. 116-23, § 2, 133 Stat. 966, 966-67 (2019). The Blue Water Act codified the Procopio holding and extended the presumption of herbicide exposure to those veterans who served "offshore of the Republic of Vietnam," encompassing service in the territorial sea extending 12 nautical miles from the shores of both the Republic of Vietnam and Cambodia. See 38 U.S.C. § 1116A (d). In short, the Blue Water Act provides that the presumption of exposure to herbicide agents extends to all veterans who served between January 9, 1962 and May 7, 1975 "offshore of the Republic of Vietnam", meaning locations within the 12-nautical-mile territorial sea of the Republic of Vietnam. 38 U.S.C. § 1116A (a). VA has promulgated regulations providing that certain diseases associated with exposure to herbicides such as Agent Orange may be service connected on a presumptive basis; multiple myeloma is among such diseases. 38 C.F.R. § 3.309 (e) (2020). Multiple myeloma is presumed by regulation to be connected to herbicide exposure if the condition becomes manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a) and 3.309(e). Initially, the Board considers whether the Veteran is entitled to presumptive service connection for multiple myeloma, based upon in-service herbicide exposure. In January 2020, the Board remanded the multiple myeloma claim for the AOJ to: (a) obtain a complete copy of the Veteran's service personnel records; (b) obtain deck and ship logs for the USS Constitution, and perform any additional development indicated, to confirm the route of the USS Constitution during the Veteran's period of service (February 1967 to November 1970) to determine whether the USS Constitution served within 12 nautical miles of the Republic of Vietnam; and (b) request additional information from the JSRRC request additional information from the JSRRC regarding whether the USS Constellation operated within 12 nautical miles from the shores of Vietnam while the Veteran was aboard. On remand, the AOJ did obtain the Veteran's available service personnel records and relevant naval logbooks. Still, after completing comprehensive research, VA review of the relevant records found no evidence to support the Veteran's contention of herbicide agent exposure during service. Specifically, an April 2021 Records Research Response showed that it had exhausted all development and had determined, based on all evidence in the claims folder, personnel records, deck logs, and command histories from while he was on board the USS Constitution from August 1969 to May 1979, as well as records from while he was assigned to Fighter Squadron 143 (VF-143) from January 1968 to November 1970. The Records Research Response found that: (a) there was no evidence to support the Veteran's contention of herbicide agent exposure during service; (b) the Veteran did not set foot in the Republic of Vietnam; (c) although the USS Constitution deployed to the Republic of Vietnam based on the deck logs, carrier deployment schedule, and ship locator tool, it did not travel in the territorial waters of the Republic of Vietnam based on evidence of record in the claims file and ship locator tool; and (d) the claims folder, personnel records, and deck logs contain no other evidence of exposure to Agent Orange. In a May 2021, Memorandum, a Records Research Specialist (from the Veterans Benefits Administration, Compensation Service, Military Records Research Center) concluded that exposure to herbicide agents cannot not be conceded because the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. Based on this evidence, the Board finds that the preponderance of the probative evidence is against finding that the Veteran was exposed to an herbicide agent during service. So, the presumptions for service connection for herbicide exposure are not applicable. Turning to the possibility of direct service connection, service treatment records are unremarkable for any complaints, treatment, or diagnosis of multiple myeloma. For instance, the October 1970 discharge examination showed no indication of multiple myeloma. On review of the record, including VA and private treatment records, there is also no probative evidence or medical opinion evidence that relates his current multiple myeloma to service, including due to claimed in-service herbicide agent exposure. The Board acknowledges his lay statements that multiple myeloma is related to claimed in-service herbicide exposure, but he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board also notes that the prolonged period without complaint or treatment for multiple myeloma also factors against the Veteran's claim. It appears the Veteran began receiving private treatment for multiple myeloma in approximately 2007, nearly 36 years after service. Accordingly, the Board concludes the probative and persuasive evidence does not support the claim for service connection, and there is no doubt to be resolved. As such, the appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.